Proposed ethics rules would include … the op-ed

Media experts and public relations pros are lighting their First Amendment torches as New York’s ethics watchdog looks to redefine “lobbying.”

An advisory opinion by New York’s Joint Commission on Public Ethics envisions a world in which all communications between PR consultants and the press on public-policy issues constitute lobbying. This month’s opinion updates a November proposal by the commission requiring more consultants to register with New York State as lobbyists.

Four New York City PR firms responded to that November proposal by hiring a civil rights attorney, who penned a letter to the commission in December calling the proposal too vague.

The new joint opinion tightens things up, noting “a public relations consultant who contacts a reporter or editorial board in an attempt to get the media outlet to advance the client’s message would also be delivering a message” – and that’s lobbying, especially if the consultant had any input into the message content.

Civil-liberties activists are aghast. “Writing an op-ed piece urging law reform cannot be regarded as lobbying, unless it further urges individuals to contact public officials,” New York Civil Liberties Union legal director Arthur Eisenberg told Crain’s, while media-relations professionals lament not only a freedom-of-speech threat, but a direct challenge to their longstanding business models.

“This is overreaching and a direct interference with my First Amendment rights,” said Katherine Heaviside, president of Huntington-based Epoch 5 Public Relations. “And these actions will interfere with the operation of yet another New York State business.”

Reaching out to newspapers and other media outlets on behalf of clients is a basic function of Epoch 5, Heaviside noted, and that in no way makes her 45-year-old PR firm a lobbyist organization.

“We are honest brokers of information,” she said. “If we cannot contact newspapers on behalf of our client, we will be hampered from the operation of our business.”

Registering as a lobbyist organization leaves a bad taste – “Anything that requires more record-keeping, more reporting, more restrictions on how you operate drives up the cost of doing business in New York State,” Heaviside noted – and challenging the relationship between PR professionals and media professionals is a dangerous slope.

“The media are a critical evaluator of everything that comes before them,” Heaviside told Innovate LI. “The public benefits from having editorial boards and reporters evaluate the news. And just because we contact them for a story doesn’t guarantee support of my client’s position.”

Good-government lobbyists say consultants often use media to influence lawmakers, and that such activity should be reported to the state. Dick Dadey, executive director of the nonprofit civic watchdog Citizens Union of the City of New York, defended the JCOPE opinion, saying it’s an effort to “know who is trying to influence the actions of state and city government and getting paid for it.”

Howard Schneider, founding dean of the School of Journalism at Stony Brook University, said he could “sympathize with the intent of the commission to make the activities of public relations consultants more transparent,” but said the advisory ruling still “seems a violation of free speech and common sense.”

Echoing Heaviside, Schneider suggested that “equating lobbying public officials with talking to a reporter about a story reveals a basic misunderstanding of the role of the press.”

“Reporters and editorial writers are not public officials, and they are not even the indirect agents of public officials,” the dean said. “They work in what they believe is the public interest, and talking to the press does not guarantee you have any control over what is eventually published or produced.”

Despite the strong opposition, the JCOPE recommendations have support from up high. In his State of the State address this week, Gov. Andrew Cuomo pushed for the reforms – plus required registration for political consultants who advise elected officials and also represent clients with government business – and promised to send a bill to state legislators.

But with those NYC PR firms already having retained one civil rights attorney, some insiders are predicting a protracted legal fight before any new lobbyist-registration law hits the books.

“There are attorneys who will build retirement houses in Quogue based on the litigation this will generate,” said Gary Lewi, senior executive vice president at strategic communications firm Rubenstein Associates. “Lawyers will have a field day with this.”

Specifically to avoid conflicts of interest among many clients with government business – current customers include the New York City Police Foundation, the Quinnipiac University Poll and the Association For a Better Long Island – NYC-based Rubenstein Associates, which maintains an Old Bethpage office, gave up government and political clients decades ago. Since then, Lewi noted, the firm has done a good job balancing fair media contact against traditional “lobbying” efforts, though the commission’s opinion could throw that balance out of whack.

The legal quandary, according to Lewi, is in the “broad interpretations” of what, exactly, the commission and its supporters are after.

“It really begs the question: Where does that train of thought stop?” he said. “If I contact a reporter to propose an editorial, am I lobbying? If someone takes out a radio ad, does the radio station become a co-conspirator, and do they need to register? Is the announcer who actually reads the text part of a lobbying campaign?

“If a client drafts an op-ed and sends it to us for editing so it more closely matches the style of the publication, have I lobbied?” he added. “And what’s the actual state bureaucracy involved in reviewing that?”

Without answers to these questions, “this proposed legislation creates such a house of mirrors,” according to Lewi, that “you don’t know where lobbying begins and where lobbying ends.”

Lawyers on both sides will have to set parameters before the commission and Cuomo get their new law. Meanwhile, Lewi joined Heaviside in warning that restricting PR professionals’ contact with news media “takes out a level of credibility and fairness and thoughtful weighing of the issues” from information dissemination – and ultimately will force more mainstream content onto social media sites, where there’s no such editorial scrutiny.

That likelihood, according to Heaviside, shows the Joint Commission’s “abysmal lack of understanding” of what media-relations professionals do.

“If we can’t contact the media, that means we’ll be running more campaigns on social media,” the Epoch 5 president said. “I don’t believe the commission really wants the news to be coming directly through the Internet.”